In a classic case of ‘the lights are on but nobody's home’, Eskom has forged ahead with a legal challenge against the National Energy Regulator of South Africa (Nersa) over the granting of electricity trading licences to five private electricity traders. (Photo: iStock) 
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The message, conveyed publicly by Eskom’s leadership on 30 September 2025 and welcomed implicitly by policymakers, was meant to signal restraint, cooperation and a commitment to legislative and regulatory reform processes rather than litigation.
But court records now tell a very different story.
A directive issued by the Gauteng Division of the High Court on 31 October 2025 states, in plain and unambiguous language, that Eskom has since confirmed to the court that it is proceeding with its review application.
Far from the matter being put on ice pending the finalisation of electricity trading rules by Nersa, the directive records active procedural steps: responses to interlocutory notices, the preparation of confidentiality agreements, and the imminent production of the Rule 53 record by Nersa.
This contradiction raises uncomfortable questions – not only about Eskom’s litigation strategy, but about transparency, governance and trust – at a moment when South Africa’s electricity sector is meant to be moving decisively toward reform and competition.
The background: traders, licences and Eskom’s court challenge
In 2024 and early 2025, Nersa granted electricity trading licences to five companies: CBI-electric Apollo, Discovery Green, Green Electron Market, GreenCo Power Services and NOA Group Trading.
These licences were a logical progression in South Africa’s evolving electricity market framework in terms of the Electricity Regulation Amendment Act, 2024, intended to enable greater competition, wheeling and trading as the system moves away from a vertically integrated monopoly.
Eskom Distribution objected. In mid-2025, Eskom launched a High Court review application challenging Nersa’s decision. The grounds were technical and legal – stated as procedural and substantive flaws in the regulator’s licensing process – but the implications were profoundly political and self-serving.
The case was widely seen as a test of whether Eskom, even in an unbundled environment, was prepared to tolerate genuine market competition.
The minister’s intervention: urging restraint
Energy and Electricity Minister Kgosientsho Ramokgopa intervened publicly and repeatedly. In August 2025, he urged Eskom to withdraw or at least stay its litigation, arguing that Nersa was fast-tracking the development of electricity trading rules and that parallel court action risked undermining confidence in the regulatory process.
The minister’s message was clear: policy reform should not be strangled by litigation. Eskom was encouraged to engage constructively in the expedited rule-making process for electricity trading rather than fighting the regulator in court.
This position was entirely consistent with the government’s stated commitment to electricity market reform, the creation of a competitive trading environment, and the reduction of Eskom’s dominance over the sector.
Eskom’s public narrative: the case is ‘stayed’
Against this backdrop, during Eskom’s 2025 financial results presentation on 30 September 2025, CEO Dan Marokane announced publicly that Eskom had placed a “stay” on its review application to allow Nersa’s process on the development of trading rules to proceed and for Eskom to engage as a participant in that process.
Media reports described Eskom as having “halted” or “paused” its legal challenge, framing the move as a response to the minister’s urging and a gesture of good faith toward Nersa’s expedited regulatory processes.
For observers, the message was reassuring. Eskom, it seemed, was stepping back from confrontation. The traders could proceed. The regulator could finalise trading rules. Reform could move forward without a looming court battle.
Except that this was not what was happening at all.
What a ‘stay’ actually means — and why this matters
In South African law, a stay of proceedings is not a rhetorical flourish. It is a specific procedural status. A genuine stay requires either a court order or, at the very least, a clear agreement between the parties that the matter is held in abeyance, with no further procedural steps taken.
Crucially, a stayed matter does not progress. Deadlines pause. Rule 53 records are not produced. Interlocutory skirmishes are put on hold.
But none of that happened here.
The court record: proceeding, not pausing
The high court directive on 31 October 2025 could not be clearer. Following a case-management meeting in chambers, the judge recorded that: “Eskom Holdings SOC Limited (Eskom) confirms that it is proceeding with its review application.”
This is not casual language. It reflects a representation made to a judge, in a formal judicial setting, with legal consequences.
The directive then sets out a timetable for active litigation:
- Eskom must respond to a Rule 7(1) notice.
- The respondents must draft confidentiality agreements.
- Nersa must prepare to deliver the Rule 53 records once the agreements are signed.
These are the hallmarks of a case moving forward – not one that has been stayed.
The duplicity problem: two audiences, two messages
This is where the credibility issue becomes acute:
- To the media and the public, Eskom said the case was paused.
- To the minister, it signalled compliance with calls for restraint.
- To the court, it said the exact opposite.
When asked to comment on this article and the apparent duplicity, Eskom responded by blaming the trader respondents for the fact that there was no stay in the legal proceedings under way.
“The new trader parties were requested to agree that the application remains stayed, but denied the request and insisted that Eskom proceeds with or abandon its application,” and: “Eskom was placed on terms to either progress or abandon its application by several of the ‘new’ traders who were issued with trading licences, before the new rules are in place,” Eskom said.
However, when approached for their response, one of the trader respondents categorically denied that it had ever been approached by Eskom seeking a stay in the matter; that the record shows that the court had also never been approached by Eskom requesting a stay, and that the decision to proceed with the review application was made by Eskom.
Another of the trader respondents indicated: “Certain elements of Eskom’s response are factually incorrect or materially incomplete. It would not be appropriate for us to engage on those issues prior to completing the required governance and legal processes.”
The impact of Eskom’s legal action
More troubling still is the implicit threat of prolonged and obstructive litigation should Eskom fail to secure its own preferred outcomes in the development of the electricity trading rules now under way by the regulator, with public hearings scheduled for 27 January 2026 (just over two weeks away).
This looming legal overhang is damaging for electricity market reform and deeply prejudicial to the business of licenced electricity traders. The uncertainty created is already negatively affecting billions of rand in investment decisions, the financial closure of projects, and the conclusion of power purchase agreements with Independent Power Producer generators and off-takers.
Speaking with two voices
Whoever is to blame for the absence of a stay, one cannot escape the conclusion that Eskom has been speaking with two voices: one calibrated for media, public and political consumption, and another reserved for the courtroom.
This disconnect is not a minor communications lapse. It goes to the heart of institutional trust and the efficacy and timing of the reform agenda. Eskom is not an ordinary litigant. It is a state-owned entity, central to the economy, operating within a constitutional framework that demands openness and accountability – a company that ought to be aligned with the national energy policy.
When such an entity creates the impression of backing down publicly and supporting the minister’s urgings, while quietly pressing ahead with a damaging legal action serving its own business interests, it points to a degree of “malicious compliance” that undermines confidence not only in Eskom itself, but in the broader reform agenda. DM
Chris Yelland is managing director at EE Business Intelligence.
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